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Former justice O'Connor urges changes in judicial elections

This is the second time in two years that former Justice Sandra Day O'Connor spoke at the University of Minnesota.

Both times she talked about partisan attacks on judges and the need to protect the independence of the judiciary, particularly in light of a Supreme Court decision six years ago. Then, a majority of the U.S. Supreme Court struck down a Minnesota rule that banned judicial candidates from talking publicly about political and legal issues likely to come before the court.

O'Connor joined the majority but wrote separately, recommending that states reconsider contested judicial elections.

Since then special interest groups have been pouring money into judicial campaigns in at least a dozen states to get judges elected who agree with their politics or issues. But even though the case that spurred the change occurred in Minnesota, the state's judicial elections have remained relatively sleepy.

O'Connor told an audience at the Humphrey Institute that this state should not take its impartial judiciary for granted.

"Here in Minnesota, the judicial election system has not yet had the kind of problems that we see in other states," she said. "This is good news because what it means is that you have time to make some changes that are careful, well-considered and deliberate to avoid that kind of problem in the future. It's already on your border in Wisconsin."

O'Connor was referring to recent judicial elections where special interest groups began spending money on judicial campaign ads like one against a Wisconsin Supreme Court Justice.

"We count on judges to use practical common sense to keep violent criminals behind bars," the ad said. "But faced with an unspeakable crime Justice Louis Butler almost jeopardized the prosecution of a murderer because he saw a technicality. When prosecutors needed to show critical evidence, Butler dissented, going against six other justices. Thankfully, he didn't get his way."

Last year's Wisconsin's Supreme Court race became the most expensive in that state's history at $6 million.

O'Connor recommended Arizona as a way Minnesota should choose its judges. At least on the books, Minnesotans elect judges. This often doesn't happen because judges routinely resign from the bench before the end of their terms. As a result, the governor appoints a person to fill that vacancy who must run for election after a few years on the bench.

Arizona has a system where a group or commission of non-lawyers produce a list of names for the governor. The governor then chooses one of those candidates. After taking the bench, new judges must run in so-called retention elections.

O'Connor said under that system judges run unoppposed but the public can vote to remove them.

"In my home state with a merit selection system, we got much greater diversity on the bench, both racial and gender," she said. "And it's worked very effectively, more so than the election system did."

O'Connor's speech was sponsored in part by groups that want to scrap Minnesota's current judicial election system: Minnesotans for Impartial Courts and the league of Women Voters of Minnesota.

After O'Connor spoke, a panel talked about changing Minnesota's system. The head of the district judges association, Hennepin County Judge Charles Porter said the state should move slowly, so it doesn't make the wrong decision.

He said there have been three judicial elections in Minnesota since the Supreme Court lifted the ban on judicial speech but the state's judicial campaigns didn't change.

"Simply taking the Arizona system lock, stock and barrel with all due respect to Justice O'Connor and bringing it here without due consideration and evaluation of it in the context of Minnesota is not the way to solve whatever problems potentially exist," he said.

But a fellow panelist, Minnesota Supreme Court Justice G. Barry Anderson said Minnesota can't wait. He said the time to act is now.

"The problem with waiting is that there was a time when Texas wasn't Texas, Ohio wasn't Ohio, and Wisconsin wasn't Wisconsin," he said. "And what you find in these states, is that once they get into the soup of highly partisan, competitive, expensive judicial elections, they can't get out."

There are bills at the Legislature that would eliminate judicial elections, but they've stalled.